Panelists Present Custody Update from Superior Court

March 2013Articles The Philadelphia Bar Reporter

Interpretation of the new custody statutes, polyamorous relationships and application of the UCCJEA were just some of the issues addressed by the Pennsylvania Superior Court in 2011 and 2012.

The Family Law Section’s Custody Committee reported on these cases at the Section’s Feb. 4 meeting featuring speakers Michael Bertin, Elaine Smith, Kristine Calalang, Lawrence Abel and Mark Allen Taylor.

The first reported appellate decision related to the custody statutes that became effective on Jan. 1, 2011 emphasized the importance for the parties and the trial court to specifically analyze all 10 relocation factors and all 16 custody factors. E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011).

Also emphasized was the need to assess all members of each parent’s household, including their criminal, drug use and mental health histories. The court also stressed that the nature of sibling and half-sibling relationships must be considered; and that no favorable presumption may be made toward a court-approved interim relocation prior to trial.

Serving a relocation notice followed by filing a petition for relocation is not tacitly conceding that the proposed move is actually a relocation under the statute, warranting an analysis of the 10 relocation factors. C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). The court can elect to treat a purported relocation case as a regular custody action based upon the circumstances presented.

Excluding evidence of facts and circumstances that exist prior to trial but after a court approved interim relocation is error. B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2012). To hold other would result in a presumption against relocation and would shift the burdens of proof set forth in the custody statute.

In the first reported appellate decision involving a polyamorous family, the court confirmed that a rebuttable presumption in favor of a parent can only be overcome by a non-parent with clear and convincing evidence. V.B. v. J.E.B., ___ A.3d ___, (Pa. Super. 2012). The trial court’s decision in favor of a grandparent was overturned due to its focus on father’s former polyamorous relationship.

The court applied precedent by holding that a parent’s prior sexual conduct should have little bearing on a custody determination without evidence of a harmful effect on a child.

The filing of a complaint in another state, although a custody determination is not yet made, is sufficient to constitute a pending proceeding under the UCCJEA. M.E.V. v. R.D.V., ___ A.3d ___ (Pa. Super. 2012). Also under the UCCJEA, the six-month residency requirement for home state jurisdiction applies to a period of when a child lives with a parent, but not with a grandparent or third party. R.M. v. J.S., 20 A.3d 496 (Pa. Super. 2011).

The court confirmed the application of the primary care doctrine. Durning v.Balent/Kurdilla, 19 A.3d 1125 (Pa. Super. 2011). After mother recovered from a serous illness that caused her to remit custody to the father, the court awarded custody back to mother as she had been the primary caregiver for most of the child’s life.

A parent who has sole legal custody is permitted to make decisions for a child to travel outside of the U.S., over the other parent’s objection. M.P. v. M.P., ___ A.3d ___ (Pa. Super. 2012). The need for a full hearing in certain matters was found to be required by the court. For example, a determination made by a parent coordinator is subject to a de novo hearing by the trial court. A.H. v.C.M., ___ A.3d ___ (Pa. Super. 2012).

Also, in restricting a parent’s custody time a trial court must have a hearing and make best interest finings. J.R.M.v. J.E.A., 33 A.3d 647 (Pa. Super. 2011). In the context of a contempt proceeding, a court cannot clarify a prior custody order that effectively results in a change of that order, without an underlying modification action and hearing. P.H.D. v.R.R.D., ___ A.3d ___ (Pa. Super. 2012).

Admitting a custody evaluation report into evidence without having the expert testify and subject to cross examination was not error when the expert was jointly hired and father not only referenced the report but also presented rebuttal witnesses to refute its allegations. M.O. v.F.W., 42 A.3d 1068 (Pa. Super. 2012).

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